I gave this paper as a keynote at the 2014 Sibeal conference in November. Thanks to the organisers for the invitation.*

Feminist judgments projects are a form of ‘academic activism’. They seek to intervene in prevailing academic and political discourses around law and its limits.1 The point is to demonstrate that it is possible, to some extent, to inhabit the judicial role, while at the same time putting feminist theoretical insights into practice. The point is to show that judging can be done differently and that cases could have been decided otherwise, even within the bounds of the available law and evidence. In doing so, it is possible to expose the gendered biases present in the original judgments, and the contingency of judicial decision-making. In a feminist judgments project, re-written judgments will often adopt contextual and relational techniques of reasoning, rather than the adversarial and abstract approaches which we have come to expect. They may make use of feminist ‘common knowledge’. They are likely to focus on the gendered effects of apparently ‘neutral’ liberal legal constructs, and will attempt to give legal life to feminist alternatives. They will often spend time on re-telling the litigant’s story in all its detail. In short, they will reflect efforts to engage with the diversity of our lives before the law.

Feminist Judgments Projects, therefore, both advance a critique of legal judgment, and suggest that other forms of progressive judging – presumably leading to different legal and social orders – are possible. For feminists, the first aim of the project is generally considered uncontroversial, but the second is much more problematic. In this paper, I discuss my own approach to re-writing the Supreme Court judgment in McGee v. Attorney General (1973). You can find podcasts of some of the other members of the Project discussing their experiences of judgment writing here and you can read accounts of similar experiences in the Australian Feminist Judgments Project here.

The Futility and Foolishness of Feminist Judging.

Denying the Importance of Activist Movements?

Every first year law student in Ireland reads McGee’s case. I doubt very much that any of them are taught that it is an unimportant judgment. (Legal academics’ faces light up at the mention of her name.) But I find the idea of investing time in re-writing McGee very strange precisely because of the work Emilie Cloatre and I have been doing to find and re-tell alternative stories of the laws which regulated access to contraception in Ireland. In his recent Seamus Henchy memorial lecture, Mr. Justice Hogan wrote that McGee ‘started a social revolution’. Our emerging sense, as we begin to write up this research, is that the work – the illegal work – of organisations such as Family Planning Services Ltd., the IFPA, the early family planning clinics and mail order services in places such as Cork, Limerick, Galway and the Contraceptive Action Programme was much more important to the transformation in women’s access to contraception in the 1970s. Indeed, some of these groups were making contraception available – to married and unmarried people – ‘for a donation’ before the McGee case was decided. The IFPA was founded and openly operated a family planning clinic in 1968. Family Planning Services Ltd. set up as a kitchen table mail order service in 1972, and was soon receiving thousands of orders and donations from around the country. Mrs. McGee’s doctor – Dr. Jim Loughran – was involved in the IFPA and the Irish Family Planning Rights Association (IFPRA) and advised those who set up Family Planning Services. People involved in IFPRA and FPS found the money. Mrs. McGee’s case and the (quasi)illegal supply of condoms by mail order are part of the same small black economy. Generally, however, litigation and high constitutional argument constitute only a very small part of the story of access to contraception in Ireland. Indeed, after McGee, as we know, legislation was a long time coming, and did not take the shape that people like Dr. Loughran wanted it to take. Family planning and reproductive rights activists were more often defendants in the courts than constitutional plaintiffs. When legislation came, it was in the stunted form of Haughey’s restrictive 1979 Act: ‘the Irish solution to an Irish problem’. Knowing all of this (and more), it feels strange to spend so much time analysing the decisions of Supreme Court judges, whose activities were so far from where, in our view, the real feminist ‘action’ lay. It is frustrating that the judgment in McGee relies to some extent on forgetting all of this action; on the fiction that Mrs. McGee was exceptional in her actions. The Chief Justice notes that the pill is available in Ireland, but is not regulated as a contraceptive. Nothing else is said about practices of circumventing or transgressing the 1935 law even though they are significant and, by 1972, a matter of organised political activism.

At the same time, the story of May McGee’s case is compelling, both in itself and as a reflection of women’s complex experiences before the law in the Ireland of early 1970s. The judgment still shapes our law, even if it is as likely to be cited in support of regressive decision-making (see Dunne J.’s judgment in Zappone and Gilligan, or the resurrection of obiter statements about the impermissibility of abortion) as in support of anything more optimistic. For me, McGee neatly embodies the core tensions in Irish legal culture’s assumptions about what the Supreme Court can do.

Placing Too Much Trust in Judgment?

Over decades, feminist legal theory has warned against over-investment in the law – and particularly in judge made law – as a site within which any social or political transformation might begin. Carol Smart’s Feminism and the Power of Law famously uses the early Foucault to de-centre the feminist emphasis on law reform as a route to social progress. She argues that law exercises power through a range of truth claims which disqualify other forms of knowledge. Law, she argues, is impervious to feminist input – it is essentially jurispathic. Law’s claim to objectivity and neutrality is particularly powerful in this respect; indeed it is this claim – and the many ritual and doctrinal performances that install it – which allows law to be so often conflated with justice.2 Each judgment serves only to legitimate law and its driving frameworks rather than to unseat them. Law operates in a formal register to conceal and justify the social divisions that it consolidates.3 Critics respond by saying that Smart’s vision of law is unduly rigid – we have a multiplicity of phrases to describe the cramped spaces in which we can find alternative iterations of oppressive legal principles: the open texture of law, indeterminacy, deviationist doctrine, responsive law, law as improvisation. Judgments do not merely reinstall the existing law but – because they interpret principles already established or apply them to new facts – perform the law anew, making space for subtle changes.4 A more cynical reading might say that these new performances usually turn in the same direction, rarely deviating from established norms. Thus, as Gillian Rose argues, if we rely on law for social transformation, we may find our intentions inverted by law’s operations; we may find that we have substituted authority for the struggle which enables change, and revitalized that which we have tried to overcome.5 The danger, as she notes, is that we ‘will force or fantasize love into the state’.6

On this reading, feminist judgment is pointless – particularly if the judgments aim for some kind of liberal legal ‘credibility’, or visible fidelity to the dominant legal tradition – because it seeks to recuperate something that is not salvageable.7 But Rose does not advocate complete withdrawal from any kind of legal enterprise. Her injunction to pursue a ‘good enough justice’ seems to me to capture the difficulties of engagement. Rose argues that we should treat law as though ‘mourning becomes it’. We may be deeply frustrated by law’s violence, but our frustration should revitalize our commitment to thorough investigation of legal structure, and to such meaningful political action as we can manage. Giving up on critique cedes more power to those who have most.

Aspiring to Judicial Office?

The role of the judge also presents its own challenges. Feminists must be uncomfortable, to some degree, about occupying an elite interior position, charged with controlling the litigant.8 There is a tendency to suggest that a feminist judgments project is inherently radical because it allows women, and feminist women at that, to perform a role denied to them. For so many women to take up the role of a Irish or Northern Irish judge is undoubtedly an exercise in ‘dressing up’; in assuming authority that women are unlikely to easily hold in reality.9 No woman at all – much less any woman of my class and background – sat in judgment over May McGee. (The closest I can get on that Supreme Court bench is Henchy – the law professor from Corofin). For this reason, Hunter argues that the feminist judgments project is an exercise in ‘drag’ – feminist academics play the role of judges to subversive ends.10 The sense of drag here goes further than swapping female for male judges. (Indeed our project, breaking with the tradition established by earlier feminist judgments projects, includes male judges). Margaret Davies points out that the purpose of drag is to consciously inhabit and perform a set of conventions not already our own. We must keep faith with the assumed role, or else the performance fails. At the same time, the performance amplifies the gap between the role and one’s ascribed identity.11 All judges, Davies insists, are playing a role to some degree. The only question for feminist judgments is what we do in the gap – is what visions of law we are able to enact.

Making Litigation Political.

My usual route into justifying feminist judging is to suggest that, even if the outcomes of lawsuits are not those we would wish for, litigation promises subjectivation: attainment of a certain kind of equal standing with other citizens. There is, in law, the litigious as well as the juridical, and the litigious has its own political power.12 Litigation promises that the turn to law is not always depoliticizing and incorporative, but can presage an exchange of reasons. It can provide a space in which citizens can author new worlds together, and transgress the boundaries of older ones. The promise, in liberal terms, is that law does not only provide a guide for practical reasoning. It also provides a framework within which agents can publicly justify their actions and demand some justification from those in power.

It is significant, from this perspective, that May McGee played a leading role her own case at all. So many of the judgments which have shaped women’s reproductive experience in Ireland – the post-Amendment clinic cases brought by organisations such as SPUC, the X case and others – were initiated by the state or conservative agents in ways which left little space for women’s voices. Insofar as constitutional litigation allows it, May McGee spoke for herself. When Emilie and I interviewed May McGee, she spoke of her gathering resolve to challenge the law; her willingness to go eventually to the European Courts if it had come to that, her sense that she might have to go to prison. The case changed and politicised her perception of her position, and she had a sense of achievement in having persisted. She began to understand herself as occupying that position – she was not only a woman who had made a reasonable request for access to the much-needed item she had bought and paid for, but a citizen bringing a constitutional challenge, entitled to think for herself. Public response to the case may confirm the validity of such an assertion of standing: the McGees also spoke of others’ expressions of approval – of the numerous letters they received after the case thanking them for what they had done.13

At the same time, of course, the experience of being a litigant can be intimidating and exclusionary, even violent in some senses. Judgments project certain legal concepts onto the litigant’s experience, often ignoring and misconstruing the social and personal context. Techniques of judging inevitably drive at closure, decision and resolution, to the exclusion of particular dissenting voices and experiences. Certain things are not speakable, much less the root of some transformative deliberation. Toni Johnson notes that, in the courtroom context, the relations between judge and litigant are already marked by unwillingness or inability to hear, because law’s ‘formulism and formalism’ have intervened.14 The relationship between the judge and the litigant is essentially a sovereign vertical one – there is no intersubjective common world here – the judge has the power and the judge decides. The most likely consequence is silencing and erasure – the litigant is seen, to borrow from Irigaray, ‘only fragmentarily, in the little-structured margins of a dominant ideology, as waste, or excess, what is left of a mirror invested by the (masculine) subject to reflect himself, to copy himself’.15 And then, when the argument is done, the litigant disappears, never to see the judge again, perhaps never to encounter the law in this way again.16

Certainly May McGee experienced particular kinds of silencing in the High Court, where O’Keeffe J. dismissed her case within what seemed like a matter of minutes. She felt that she had not been listened to; that this was a man who, like many other men in her experience, did not listen to women. At the same time, she and Mr. McGee were not entirely without agency. In their interview with us, they described humorous moments in which they found themselves unable to take the more prudish or provocative questions asked by the State’s barristers seriously, or were able to poke fun at them. Donal Barrington described a moment in which Shay McGee was able to dismantle a barrister’s disapproving question. Asked if he would approve of his wife using contraception, he said that he would rather see her use it than put flowers on her grave. That said, the moments of transgression described to us could not appear directly in the text of the original judgment, and I cannot both adhere to judicial convention – as the project requires me to do – and include them in mine.

Johnson has something more profoundly de-stabilising in mind. She says that generosity will mean that the judge must develop a consciousness and exposure to the political context of the individual judgment; for instance, in immigration decision-making, the judge would have to frankly engage with the colonial legacies which have produced the immigration regime in the first place, rather than simply assuming its legitimacy. That is where, I think, part of the potential of feminist judging lies. Feminist judgments may aim, insofar as they can, to re-stage judgments as if that political generosity had been a possibility.

Rewriting McGee

McGee may seem an odd choice for a feminist judgment because, at least at a superficial level, the Supreme Court gave the ‘right answer’ – s. 17 of the Criminal Law Amendment Act 1935 was unconstitutional, as a breach of the right to privacy in one’s marital affairs. But, as many of our comrades on the Project have observed, feminist judging is as much about ‘how’ you get to the right answer as in getting there at all. I want my judgment – still very much in draft – to reveal a little more about the political stakes of decision than the original judgments do. This judgment, which has much more to do with judges’ imagining of fundamental social institutions than with the careful development of precedent, presents a number of ‘targets’.

Marriage.

The most obvious target is the case’s relationship to marriage. McGee was read as creating a marital exception to an prohibition or restriction on access to contraceptives. As Griffin J. noted, ‘in any ordered society the protection of morals through the deterrence of fornication and promiscuity is a legitimate legislative aim’. But the same could not be said of interference with the decisions of a married couple acting under the direction of a responsible doctor. I am not sure that I can make the break with marriage in the judgment in McGee. The Supreme Court rejects the argument that contraception is purely a private matter and should not be regulated at all. It is probably not possible to go further, while remaining within the bounds of the law prevailing at the time. However, I aim to unsettle the majority’s assumptions around the nature of marital privacy. There are two issues here. The first is that marital privacy must be an individual rather than a group right. The majority of the Supreme Court takes this position, but it is not until Norris that an individual right of privacy in sexual matters is frankly acknowledged (perhaps because Norris, by definition, could not marry). Budd J. is clearest in his insistence that the right derives from the individual’s status as citizen, and not from his or her marital status. Walsh J., by contrast, concentrates his judgment on Article 41 and on the 1935 law as an interference with the authority of the family. Henchy J. notes that the answer to the court’s dilemma ‘lies primarily in the fact that she is a wife and a mother’. So, the original judgements present me with an opportunity to situate my own judgment somewhere on a spectrum. My aim is to side with Budd J., but in more depth, by clarifying that marriage is an important context within which individual rights are exercised, rather than the source of those rights. The second issue is that the judgment takes a rather stunted view of marriage as the limit point of the right to privacy in sexual and reproductive matters. As Henchy J. argues ‘[i]n deference to her standing as a wife and mother’ Mrs. McGee ought not to be condemned as a criminal, or be exposed to the investigative gaze of the state. The effect is to oppose motherhood to what Henchy J. acknowledges was the original purpose of the 1935 law – the suppression of vice. Motherhood appears as unimpeachable womanhood, but the notion of criminalising other expressions of sexuality is left completely intact.

I hope to address both issues by proceeding from the basis that what makes marriage worthy of the state’s special respect is not its distinction from other pathologised forms of sexual exchange, but the assumption that it provides a context within which adults support eachother to pursue particular valuable kinds of life project. These can include, but are not confined to, the rearing of children. (What is most impressive about the McGees’ marriage, from a feminist perspective, is not their conformity to some institutional vision, but their loving willingness to depart – together – from a series of social norms). For the Chief Justice, dissenting, marriage was the site of certain overwhelming duties of self-sacrifice. He wrote that ‘[h]aving regard to the provision in the Constitution prohibiting divorce, the physical or mental illness of one spouse necessarily has its repercussions on both, perhaps for their joint lives. These appear to me to be natural hazards which must be faced by married couples with such fortitude as they can summon to their assistance.’ Clearly, the majority, by enumerating a right of marital privacy anticipated that husbands and wives could co-operate to build something better than a relationship of hapless submission to ‘natural hazards’. In writing a feminist judgment, it seems necessary to give expression to a constitutional conception of marriage which clearly does more than replace submission to natural hazards with submission to unrestricted private authority.

When Budd J. imagines the citizen’s individual right he describes that citizen as ‘he’. In order to make my argument for an individual right to privacy, exercised within but not dominated by marriage, I will pursue the classic feminist tactic of thinking of the citizen as ‘she’. By taking up that perspective, I have the opportunity to say something about the particular importance of women’s right to privacy within marriage. I plan to spend some time drawing out the sorts of burdens of pregnancy and child-rearing which even an aging male judge in 1973 could recognise, in order to argue that (married) women must have some independent entitlement to decide on the number and spacing of their children. (Open talk of Magdalene laundries and Mother and Baby Homes would, most likely, be a bridge too far if a credible judicial performance is to be maintained – though their existence was certainly a matter of judicial ‘common knowledge’.) Mrs. McGee, of course, needed access to contraception to safeguard her health. However, the judgments do not dwell on this – perhaps because the court was wary of being seen to stray too far into policy matters. (This side-stepping of health as an independent issue also allows the court, I think, to underplay bodily integrity as a proper ground for its decision).

However, the court does identify some harms resulting from interference with privacy.The potential injury to privacy is gender neutral in Henchy’s judgment – the injury is state intervention into the bedroom, or perhaps having to reveal secrets to the state in the course of criminal investigation. There is a very male notion of marital honour at play here, derived from the American Supreme Court jurisprudence cited to the court. But of course, prosecutions under the Act had stopped by the 1970s (Frederick Budd had himself, as a younger man, defended pharmacists prosecuted under the Act in one of the few cases I have come across). A much more common experience for women under the law – besides that of coerced pregnancy – was that of routine humiliation by doctors, pharmacists and other authority figures. Another was that of inequality – being unable to get access to contraception when other wealthier women, or women who could travel, or women who lived near the border could avoid the law more easily. McGee neither addresses nor solves either of these problems. It does nothing to challenge or foreclose a legal order – implemented by the 1979 Act – in which it seems only natural that a woman’s use of a diaphragm and spermicidal jelly should be licensed by her doctor, and in which access to contraception should be by conditioned by ability to pay.

To draw out the day-to-day burdens imposed by the 1935 law, I am considering playing with the rich language of Henchy J.’s later judgment in Norris, which (despite its many flaws) seems to me to be much more attentive to the individual burdens of the criminalisation of sexual behaviour than his more abstract judgment in McGee. (I am not sure, yet, how much help I will get from that perennial judicial favourite, Aristotle on this front.)

Conscience

A second ‘target’ is the argument, maintained in both the High and Supreme Courts, that the constitutional right to ‘freedom of conscience’ is freedom to choose a religion and to act in accordance with its precepts – ‘it is not a freedom for the individual to act in furtherance of his private welfare within the limits set by his own conscience’. I want to see whether it is possible to find an Irish account of conscience which is rooted in something other than what Walsh J calls ‘the firm conviction that the people of this state are a religious people’ or which can, at the very least, acknowledge the Catholic McGees’ thoughtful and deliberate decision to use contraception as an exercise in religious dissent. The argument that the Constitution protected conscience has an important pedigree: Nell McCafferty printed it on leaflets handed out to activists who travelled on the contraceptive train in 1971. The McGees, consciously or otherwise, were part of a broader movement for social change. It would be good to test whether this idea could have had some purchase in law.

Final Thoughts on the Judicial Role.

A focus on conscience would also be a very useful irritant to this judgment’s framing of the process of legal transformation. As noted earlier, talk of motherhood allows the court to avoid the fact that Mrs. McGee has committed a crime. The impossibility of enforcing that criminality is what drives the change in the law. But that is not how the court explains what is going on. Walsh J. famously advances an explanation of constitutional interpretation, which relies on our accepting the judge as capable of divining the eternal principles of the natural law:

In this country it falls finally upon the judges to interpret the Constitution and in doing so to determine, where necessary, the rights which are superior or antecedent to positive law or which are imprescriptible or inalienable. In the performance of this difficult duty there are certain guidelines laid down in the Constitution for the judge. The very structure and content of the Articles dealing with fundamental rights clearly indicate that justice is not subordinate to the law. In particular, the terms of s. 3 of Article 40 expressly subordinate the law to justice. Both Aristotle and the Christian philosophers have regarded justice as the highest human virtue. The virtue of prudence was also esteemed by Aristotle as by the philosophers of the Christian world. But the great additional virtue introduced by Christianity was that of charity not the charity which consists of giving to the deserving, for that is justice, but the charity which is also called mercy. According to the preamble, the people gave themselves the Constitution to promote the common good with due observance of prudence, justice and charity so that the dignity and freedom of the individual might be assured. The judges must, therefore, as best they can from their training and their experience interpret these rights in accordance with their ideas of prudence, justice and charity. It is but natural that from time to time the prevailing ideas of these virtues may be conditioned by the passage of time; no interpretation of the Constitution is intended to be final for all time. It is given in the light of prevailing ideas and concepts.

I am not especially interested in rehashing the natural law debates for their own sake. However, the position adopted by Walsh J. leaves very little room for the feminist theory of litigation to which I am committed. The emphasis on marital authority in the judgment suggests a law adapted to the social order already established by the new state. And on Walsh’s majesterial account of the judicial role, the judge’s insights, and not the litigant’s actions reveal the possibility of a Constitution not entirely dominated by reactionary Catholic teaching. It is the judge’s recognition that law’s time is out of joint which justifies the re-reading of the constitution to accord with new social norms. This account of judgment stands to be disrupted. It is something which mimics Johnson’s notion of ‘generosity’, but is not the same, because it expressly closes out the sense of the political, falling back instead on some notion of eternal unmediated value.

Coming back full circle to the opening of this paper, I want to suggest that individual compliance and refusal can be at the core of legal transformation – they can be the root of this law as well as the problem which animates judgment. I want to write a judgment that suggests that Mrs. McGee’s dissent from the prevailing legal order – her disobedience, her subjectivation – is the origin of the new right.17 Greater attention to conscience can nudge the feminist judgment in this direction, and towards a more humble account of the judicial function in Irish constitutional law.

*The paper draws, a little, on interviews conducted with May and Shay McGee (pictured), Donal Barrington, Robert Cochran and Dudley Potter for an ongoing project, with my colleague Emilie Cloatre on resistance to the contraceptive laws in force in Ireland in the 1970’s. Thanks to them for their co-operation, and to the University of Kent Faculty of Social Sciences which provided the funding necessary to undertake the research. Feedback is very welcome, with the proviso that this paper is very much a draft and should not be cited.

At this point there is the temptation to acknowledge that perhaps the feminist approach to McGee is not to seek better legal reasoning, but to follow law’s patriarchal impulses to their logical conclusion, frankly exposing their costs: perhaps I should refuse Mrs. McGee her contraceptives as the Chief Justice, and Justice O Caoimh in the High Court, did. ↩

Amusingly, the McGees’ participation in the case went undetected by many of their neighbours and family members. This was because the papers referred to them as ‘Mary’ and ‘Seamus’, when they were better known as ‘May’ and ‘Shay’. Mrs. McGee herself was known to friends by her parents’ surname, Grimes. ↩